Marketplace Appeals Process Presented in partnership with the National Health Law Program Center on Budget and Policy Priorities February 28, 2018
National Health Law Program (NHeLP) 2 NHeLP is a national, non-profit organization that protects and advances the health rights of low-income and underserved individuals and families NHeLP advocates, educates and litigates at the federal and state levels Find out more: www.healthlaw.org Follow NHeLP on Twitter and on Facebook! DISCLAIMER: Today s presentation provides a general policy overview and does not provide direct legal advice
Agenda 3 When an eligibility decision can be appealed The role of assisters in appeals The process for filing an appeal How appeals decisions are carried out
Marketplace Eligibility Appeals 4 Consumers who disagree with certain eligibility determinations made by the marketplace have a right to appeal Consumers in the federal marketplace submit appeals to the HHS Appeals Entity (Federal Appeals Entity, or FAE) Part of HHS separate from marketplace Also handles Medicare appeals Consumers in state-based marketplaces first appeal to their state s appeals entity but can then appeal state determinations to the federal entity
What Determinations Can be Appealed
Not All Issues Can Be Appealed to the FAE 6 A determination must be final and of appropriate subject matter Other types of issues that are not appealable to the Federal Appeals Entity (FAE) can be addressed in other ways: Casework, after escalation by the Call Center Appeal with the insurer File a complaint with the state Department of Insurance
CMS Casework 7 When is casework appropriate? Complex eligibility or coverage issue and neither the Call Center nor the insurer can help Might qualify for an exceptional circumstances special enrollment period if the Call Center cannot help Information on 1095-A tax form is incorrect and the Call Center cannot help Ask the Marketplace Call Center to submit a case to CMS Casework If a case is complex or there is a problem with a Form 1095-A and case cannot be resolved through the Call Center or other resources In casework, a person with policy knowledge takes a fresh look at a situation. Casework is available by request when the call center cannot answer an eligibility question or when it appears the call center has given an incorrect answer. For more information, see July 2015 CMS Assister Webinar: CMS Casework Overview
Insurer Appeals 8 What are some types of issues can be resolved through the insurer? Provider was listed as in-network, but when attempting to use coverage, the provider doesn t accept the consumer s insurance Went to the emergency room and the consumer s bill says the provider was out-of-network and payment is owed Insurer denied a claim for a covered service or procedure Insurer would not cover a prescription Insurer cancelled coverage Appeal to the Insurer If consumer has a problem with coverage of a health care service or other benefits decision made by the insurer Internal Appeal: Within 180 days of receiving claim denial or adverse decision, ask insurer to conduct a full and fair review of its decision External Appeal: Appeal to an independent 3rd party after completion of an internal appeal For more info, see www.healthcare.gov/using-marketplacecoverage/appealing-insurance-company-decisions
State Department of Insurance (DOI) 9 What are some types of issues that can be resolved by DOI? Appealed the denial of a service with insurer which denied the appeal because: Not medically necessary (including appropriateness, healthcare setting, level of care or effectiveness); Experimental/Investigational; or Due to a pre-existing condition Insurer incorrectly terminated coverage Provider was originally included in the provider directory for a health plan, but consumer is being told that was a mistake Insurer is denying a claim because it is for substance use or mental health care in violation of mental health parity laws Consumer was fraudulently sold health insurance Contact State DOI If the issue is due to discrimination by the insurer, fraudulent selling of health insurance or the consumer wants to appeal an external appeal decision received from an insurer Look at the Explanation of Benefits (EOB) or the insurer s final denial of the appeal for the DOI s contact information, or Visit the National Association of Insurance Commissioners: www.naic.org/state_web_map.htm
Marketplace Appeals 10 What types of decisions can be appealed to the FFM or SBM? Denial of APTCs or CSRs Amount of APTCs or CSRs Adjustment in APTCs or CSRs at end of 90-day inconsistency period Denial of eligibility to enroll in marketplace coverage Denial of a special enrollment period (SEP) Termination of marketplace coverage Denial of coverage exemption Denial of eligibility for Medicaid/CHIP Appeal to the FFM or SBM If consumer disagrees with a final marketplace eligibility determination Can file an appeal within 90 days of a final eligibility determination For more information, see www.healthcare.gov/marketplace-appeals/what-you-can-appeal
Appealing a SBM Eligibility Determination to the FAE 11 Consumers in State-Based Marketplace (SBM) states can appeal the same issues to their SBMs Once they receive a decision from the SBM, consumers may appeal to the Federal Appeals Entity (FAE) if they disagree with: The decision of the SBM eligibility appeals entity, or The SBM appeals entity s refusal to reopen an appeal after it was dismissed State Medicaid agency decisions by an SBM (or after an FFM assessment) are not appealable to the FAE Reminder: States that use SBMs CA, CO, CT, DC, ID, MD, MA, MN, NY, RI, VT, WA
When Can a Consumer Appeal to the FAE? 12 The eligibility determination must be final before it can be appealed In the FFM, an eligibility determination is not considered final if it includes a data matching issue meaning the consumer must provide proof of an eligibility factor such as citizenship or income to finalize the determination of eligibility These are cases that are usually referred to as having inconsistencies or data-matching issues The determination cannot be appealed even if some parts of it are final
Example: What Can Be Appealed? 13 Susan applies for coverage: She is determined eligible for marketplace coverage with subsidies Her daughter, Ilana, is assessed eligible for Medicaid Ilana s application will be sent to Medicaid for a final determination What can Jane appeal? Her (effective) denial of Medicaid coverage The amount of tax credits she s eligible for She cannot appeal the assessment that Ilana is eligible for Medicaid because that decision is not final Susan can appeal to the state appeals entity if she disagrees with the final Medicaid determination
Example: Temporary Eligibility Determination 14 John applied to the FFM and received an eligibility determination that says he is eligible for premium tax credits but not cost-sharing reductions The eligibility determination also says the decision is temporary and he must provide proof of his citizenship status (he has a data-matching issue) Can he appeal the decision that he isn t eligible for cost-sharing reductions? NO. Not until the citizenship data-matching issue is resolved Until then, HHS considers his eligibility temporary However, he can go back and check the income information he entered on his application and make any changes If he makes changes in his application, a new eligibility determination notice will be generated and, based on the new information, his eligibility for costsharing reductions and the amount of his APTCs may change
How to Request an Appeal
Requesting a Marketplace Eligibility Appeal 16 Ways to request a marketplace eligibility appeal: Complete an appeal request form (best option) (available here: www.healthcare.gov/marketplace-appeals/appeal-forms); OR Write a letter explaining the reason for the appeal Mail to: Health Insurance Marketplace Attn: Appeals 465 Industrial Blvd London KY 40750-0061 Fax to: 1-877-369-0130
Timeframes for Requesting Appeals 17 In FFM states, appeals to the Federal Appeals Entity (FAE) must be submitted within: 90 days of the contested eligibility determination; or 30 days of a notice declining to reopen the appeal after it was dismissed Appeal must be requested by consumer or by designated authorized representative In SBM states, appeals to the FAE must be submitted within: 30 days of the SBM appeals decision; or 30 days of notice from the SBM declining to reopen the appeal after it was dismissed by the SBM NOTE: If 90 days has passed since the eligibility decision, consumers may be able to get an extension of time to file if they can provide a strong reason why they didn t file during the 90-day period.
When a Marketplace Eligibility Appeal is Received 18 The FAE receives the appeal and determines the validity of the request If determined valid, the appeal is acknowledged in writing and the appeals process begins If determined invalid, a notice is mailed describing how to fix the problem and resubmit the appeal request Why might an appeal be invalid? Filed more than 90 days after the eligibility determination notice Filed to contest a temporary eligibility determination rather than a final eligibility determination Filed to resolve an issue outside the authority of the FAE to resolve (e.g. whether an insurer covers a particular service)
Who Can Assist in an Appeal? 19 An authorized representative (AR) can represent a consumer in an appeal! Caution: The term authorized representative means different things at different stages of the eligibility process Third party representative for the Call Center: Authorized representative for the application: Authorized representative for an appeal: Can communicate with the Call Center on the consumer s behalf Does not make decisions on behalf of the consumer (e.g. selecting a plan or filing an appeal) Can act on behalf of the consumer on all aspects of the application For example, a parent who enrolls their child or a guardian of an incapacitated adult Acts as a legal representative for the consumer during the appeal Can present information and witnesses during a hearing on behalf of the consumer
Role of Navigators in the Appeals Process 20 In the majority of appeals, the applicant represents herself, without legal assistance. A Navigator or other assister may be particularly helpful to appellants who don t have legal assistance. Assisters can help consumers: Understand whether they have a right to an appeal Understand the process of filing an appeal and what steps to take to complete an appeal Access relevant marketplace resources, such as appeal request forms and mailing addresses and marketplace guidance on appeals Identify and meet the deadline for appealing Get information about free or low-cost legal help in their area
Role of Navigators in the Appeals Process 21 Navigators should not: Provide legal advice, such as by recommending consumers take specific action with respect to the right to appeal o Example: Navigators can help consumers understand the difference between an appeal and an expedited appeal but should not help them decide whether to request an expedited appeal Navigators do not have a duty to: Represent a consumer in an appeal Sign an appeal request File an appeal on the consumer s behalf NOTE: Navigators are not prohibited from being a consumer s AR but activities as an AR must be separate from Navigator duties and can t use Navigator grant funds to act as an AR
Example: Authorized Representative 22 Ashley was unable to resolve an application issue through casework and now needs to appeal David helped Ashley file her appeal and followed up with the Federal Appeals Entity to make sure her appeal request was received The informal hearing is scheduled in a few weeks Can David participate in the hearing on Ashley s behalf? In a limited way. He can participate as a witness on Ashley s behalf during the hearing but if he is not a lawyer, he should not act as her authorized representative NOTE: Since Ashley s legal rights are at stake, she may want to have an attorney represent her She can contact her local legal aid organization to see if she may qualify for free legal assistance: lsc.gov/what-legal-aid/find-legal-aid
Appeals Process and Implementing Eligibility Decision
First Stage of an Appeal: Informal Resolution 24 The FAE works with appellants to resolve eligibility appeals informally: Reviews facts and evidence Phone conversation with consumer (and authorized representative) Informal Resolution Notice: Describes proposed resolution and decision If consumer is satisfied: Appeals decision follows (unless consumer voluntarily withdraws the appeal) If the consumer is unsatisfied: The consumer may request a formal hearing
Second Stage of the Appeal: Formal Resolution/Hearing 25 If the consumer is dissatisfied with the outcome of the informal resolution, case proceeds to a formal hearing: Written notice will be provided by the FAE at least 15 days prior to the hearing date (unless appeal is expedited) Conducted by telephone Federal hearing officer presides over the hearing The Federal Appeals Entity conducts a de novo review, which means a fresh start for the consumer that doesn t defer to the marketplace s determinations Consumers can present witnesses and evidence Have right to review the appeals record before and during the hearing (must request record in writing) Consumer and witnesses provide testimony under oath
Expedited Appeals 26 Appeals can be expedited when the standard timeframe could jeopardize the appellant s life, health or ability to attain, maintain or regain maximum function * Request for an expedited appeal needs to be noted on appeal request If a consumer s circumstances change, can request expedited appeal after submitting an appeal request If a request to expedite is denied, the FAE must: Provide written notice of the reason for the denial Consider the appeal under the standard timelines * Source: 45 CFR 155.540(a)
Example: Expedited Appeal 27 Diane had her APTCs terminated due to an income data-matching issue that wasn t resolved She wants to file an appeal but while the appeal is pending, she will have to pay 100% of the premiums to maintain her coverage Paying 100% of the premiums would be a financial hardship for Diane Can she request an expedited appeal? NO. Financial hardship alone is insufficient to request an expedited appeal
Example: Expedited Appeal 28 Diane had her APTCs terminated due to an income data-matching issue that wasn t resolved She wants to file an appeal but while the appeal is pending, she will have to pay 100% of the premiums to maintain her coverage But what if Diane has a chronic condition and needs monthly medication to maintain her current health status Can she request an expedited appeal? YES. If Diane does not get her medication, her health may be at risk so she can request an expedited appeal
Eligibility Appeals Decisions 29 Following the hearing, the Hearing Officer makes a decision based on the testimony, other evidence and the applicable legal rules The decision is in writing and must be issued within 90 days of the date the appeals request is received (as administratively feasible ) The decision is final and binding but may be subject to judicial review
Implementing the Eligibility Appeals Decision 30 If the appeal is successful, the consumer has two options: Have the decision implemented on a prospective basis Change would be effective following regular effective date rules (e.g. if select a plan prior to the 15 th of the month, coverage effective on the 1 st of the following month) Request retroactive implementation Change would be effective back to the coverage effective date the consumer did receive or could have received if the consumer had enrolled in coverage under the initial eligibility determination Note: For retroactive coverage, the consumer has to pay his share of the premiums and cannot choose a different retroactive date.! Implementation may take additional follow-up with Call Center and/or issuer to ensure effectuation
Example: Retroactive Coverage 31 Mei was denied APTCs for coverage that would have started on January 1, 2017 She appealed the denial and was paying the full premium from January-June 2017 to keep her health coverage She won her appeal Can she get retroactive APTCs back to January? YES. Mei can choose to have the APTCs applied retroactive back to January 1, 2017 (or she can claim these on her 2017 tax return) If she receives retroactive APTCs, her insurer can either refund her excess payments from January-June or apply the retroactive APTCs to future months, reducing Mei s payments from June forward.
Example: Retroactive Coverage 32 But what if Mei didn t enroll in coverage during the appeal process? Can she get retroactive coverage dating back to a date of her choosing (and only pay premiums for those months)? She cannot choose the month when retroactive coverage will start If she wants retroactive coverage, it will start January 1 and she will need to pay all the premiums owed from January to June Jan 1: Coverage retroactively applied Mei must pay all premiums (minus APTC amount) APTCs applied to premiums JAN FEB MAR APR MAY JUN JUL AUG SEP OCT NOV DEC Jan 20: Appealed eligibility determination Jun 10: Wins appeal
Example: Family Glitch 33 Benita s husband has affordable insurance through his work but the cost to insure Benita is too expensive She falls in the family glitch When she applies to the Marketplace, she is denied APTCs Can she appeal the denial of APTCs? YES, but This is an appealable issue because it is a disagreement with a final eligibility determination However, the appeal will be unsuccessful because the determination that Benita is ineligible for APTCs due to the family glitch is based on the law rather than an incorrect application of the eligibility rules (that is, she can t win her appeal because the ACA does not allow consumers in the family glitch to receive tax credits)
Help With Appeals 34 Marketplace Call Center can explain how to request an appeal Call 1-800-318-2596 (TTY: 1-855-889-4325) Marketplace Appeals Center can answer questions about a specific appeal Call 1-855-231-1751 (TTY: 1-855-739-2231) Finding an authorized representative: Low-income consumers may be eligible for free legal assistance: lsc.gov/what-legalaid/find-legal-aid
Key Points to Remember 35 Consumers can write a letter, complete an appeal request form and mail or fax the request to the Federal Appeals Entity The Marketplace Appeals Center will try to resolve eligibility appeals informally Appellants have a right to a hearing if they remain dissatisfied with the informal resolution Decisions are mailed within 90 days of receipt of the appeals request as administratively feasible
Resources 36 NHeLP: Marketplace Appeals Fact Sheet: www.healthreformbeyondthebasics.org/nhelp-marketplace-appeals-fact-sheet How to appeal marketplace eligibility: www.healthcare.gov/marketplace-appeals/ways-to-appeal Marketplace decisions you can appeal: www.healthcare.gov/marketplace-appeals/what-you-can-appeal Marketplace appeal forms: www.healthcare.gov/marketplace-appeals/appeal-forms
New Resource: ACA Exemption Tool
CBPP Exemption Tool 38 New Tool for 2017! www.healthreformbeyondthebasics.org/aca-exemptions-income-tool Some of the most common ACA exemptions are income-based. Income below the filing threshold Income below 138% FPL (in non-expansion states) Unaffordable coverage at work Unaffordable coverage in the marketplace These exemptions have different thresholds, different calculations of income, and other challenges.
Simple Entry 39 Start by answering some basic questions about filing status, family size and income.
Tests the Most Common Exemptions 40 Income below filing threshold Medicaid coverage gap Affordability of individual and family employer-sponsored coverage
Tests the Most Common Exemptions 41 Affordability of marketplace coverage, including Where to find marketplace plan costs, Which family members to include in the plan cost, based on their insurance offerings, and All of the math to calculation the PTC someone would have been eligible to receive.
Contact Info 42 A special thank you to: Mara Youdelman, Managing Attorney (DC Office), National Health Law Program: Youdelman@healthlaw.org or (202) 289-7661, @marayoudelman Tara Straw, Center on Budget and Policy Priorities: tstraw@cbpp.org Halley Cloud, Center on Budget and Policy Priorities: cloud@cbpp.org General inquiries: beyondthebasics@cbpp.org For more information and resources, please visit: www.healthreformbeyondthebasics.org This is a project of the Center on Budget and Policy Priorities, www.cbpp.org